Firstbank Puerto Rico v. Atlantic Finance Business Corp., Leovigildo Perez-Minaya, No. 12-cv-1339 (D. P.R. Feb. 18, 2014) [click for opinion]
This case involved a complaint filed in the District of Puerto Rico against Defendants, who are domiciled in the Dominican Republic. The summons was not served on Defendants within 120 days of filing the complaint, but Plaintiff explained the delay and successfully showed cause why the case should not be dismissed. Defendants then brought a motion to dismiss the complaint due to insufficient service of process, arguing that Plaintiff failed to serve process in compliance with Dominican law and failed to startthe process of serving Defendants within 120 days of filing the complaint.
Rule 4(f) and (h) of the Federal Rules of Civil Procedure govern service of process on an individual or corporation in a foreign country and refer first to service in accordance with any international agreement regarding service abroad. If there is no international agreement, then service may be accomplished by other means, including "as prescribed by the foreign country's law for service in that country in an action in its courts of general jurisdiction." Because there is no international agreement between the Dominican Republic and the United States, Plaintiff elected to serve pursuant to Dominican law.
The court found that Plaintiff had complied with Dominican law, which does not establish a deadline by which process must be served but requires a civil action to be dismissed if the lawsuit has had no activity, including lack of service of process, for three years. Plaintiff had served Defendants within that three-year window.
On the second issue—whether Plaintiff failed to start the process of service within 120 days of filing the complaint—the court reaffirmed its earlier finding that Plaintiff showed good cause for its delay. The Court further noted that, although the 120-day deadline for service does not apply to service in a foreign country under Rule(f), the amount of time allowed for service abroad is not unlimited and a plaintiff may not be dilatory. The court found the 120 day cut-off for domestic service to be instructive in determining a reasonable limit for foreign service. But in this case, the court found that Plaintiff had begun the process of service within the 120-day time frame, so the delay "was not so unreasonable as to warrant outright dismissal of the case."